Litigation Insights

Analysis and practical guides on litigation.

199 articles, checklists, and guides on litigation law, written by the attorneys at MC Law. Every piece is general information, not legal advice — for a specific matter, contact the firm.

LitigationTrial Practice

Preparing Exhibits and Demonstratives for Trial: A Practical Guide

Exhibit preparation is a project with a schedule, and the trials that go smoothly are the ones where the work was done in the right order twelve weeks out. This guide sets out that schedule: building the exhibit database from the case theory backwards, securing certifications under Rules 902(11) through (14) while there is still time to cure objections, and running the stipulation session that eliminates most foundation testimony. It covers writing foundation scripts that a junior lawyer can execute, designing demonstratives that survive objection, managing redactions so that the version admitted matches the version the jury receives, and preparing motions in limine that are worth filing. Later sections address the courtroom technology check, the daily exhibit log, deposition designations, and the jury room set. Worked examples follow a document-heavy commercial trial and a case tried on a compressed schedule.

Casey Scott McKaySeptember 5, 202629 min read

LitigationAppellate Practice

Petitioning for Certiorari or Rehearing En Banc: A Practical Guide

This guide sets out how to build a petition that has a chance, and how to defeat one. It begins with the decision that matters most — whether to file at all, and if so in which case — then the conflict research and vehicle analysis that determine the answer. Drafting sections work through the question presented, the statement, and the reasons for granting, in the order the Court reads them and with the merits argument in its proper subordinate place. Respondent sections cover the waiver decision, the structure of a brief in opposition that leads with vehicle problems, and how to handle a call for a response. Later sections cover amicus coordination, the rehearing en banc petition and its intra-circuit conflict ground, panel rehearing as a narrowing tool, deadline and appendix mechanics, and reading the signals between distribution and disposition.

Casey Scott McKaySeptember 5, 202627 min read

LitigationInternational Litigation

Parallel Proceedings Toolkit: Anti-Suit Motions, Comity Analyses, and Coordination Protocols

This toolkit supplies the working documents of a cross-border parallel-proceedings dispute, annotated with the consequence each carries. It provides an anti-suit motion outline built around the thresholds that defeat most applications, a proposed order drafted narrowly enough to be granted and to survive appeal, and a foreign counsel declaration template. It supplies a stay motion for the situations where less is more, a comity analysis memorandum, and the coordination protocol and position paper that prevent two sets of counsel from undermining each other. An evidence conflict matrix, a recognition opinion request, simultaneous settlement mechanics, and preventive dispute resolution clauses complete the set.

Casey Scott McKaySeptember 5, 202617 min read

LitigationInternational Litigation

Parallel Proceedings and Anti-Suit Checklist

When a foreign proceeding appears, the decisions that determine the outcome are made in the first two weeks, and most of them are checkable. This checklist covers the immediate steps, including the deadlines and the forum clause review that take minutes and determine everything. It then runs the strategic assessment — race, enjoin, stay, or settle — with the judgment recognition analysis that should precede any decision to race and the thresholds that defeat most anti-suit applications. Later sections cover the coordination machinery, the evidence conflicts between compelling and prohibiting jurisdictions, witness and position discipline, preclusion tracking, and the simultaneous settlement mechanics that resolve both proceedings at once.

Casey Scott McKaySeptember 5, 20269 min read

LitigationRemedies

Order Enforcement Toolkit: Show Cause Motions, Contempt Briefing, and Sanctions

This toolkit supplies the working documents of an enforcement effort, ordered by when they are used. It opens with an order enforceability assessment that reads the decree as a hostile reader would, a bound-persons worksheet built on Rule 65(d)(2), and a compliance demand plus the facilitator notice that resolves many situations without a motion. It provides a motion to modify where the order is not specific enough to enforce, an order to show cause and a contempt brief outline organized around the elements a court decides, a sanctions request that keeps coercive relief civil, and a compensatory damages declaration with fee segregation. Later tools cover a proposed contempt order, an opposition framework for the defense side, a compliance monitoring log, and an injunction drafting checklist for the next case. Each item is annotated with the failure it prevents.

Casey Scott McKaySeptember 5, 202618 min read

LitigationArbitration

Motion to Compel Arbitration Toolkit: Clauses, Declarations, and Appellate Strategy

Working templates for arbitrability practice. It includes a full model arbitration clause with delegation, class waiver, carve-outs, and an FAA fallback; the agreement-hierarchy sentence in three variants; a motion to compel with a proposed order; a formation declaration for online terms with the exhibit list courts expect; an opposition outline aimed correctly at a delegation provision; a formation-evidence package specification for engineering and legal; and an annual clause audit worksheet. Each carries drafting notes on what the language does and where it fails. Adapt everything to the jurisdiction and the parties.

Casey Scott McKaySeptember 5, 202616 min read

LitigationArbitration

Mass Arbitration: How Thousands of Individual Claims Became a Strategic Problem

Companies spent two decades building arbitration clauses to defeat class actions, and then plaintiffs' firms used those same clauses to file claims by the thousand. This article explains how mass arbitration works, why the filing-fee economics are so unforgiving, and what happened when businesses tried to escape the process they designed. It covers the AAA and JAMS mass arbitration rules, batching and bellwether structures, the unconscionability decisions that struck down the first generation of countermeasures, and the informal dispute resolution provisions that are now standard. It closes with what a defensible consumer arbitration program looks like and why the honest answer sometimes is to litigate.

Casey Scott McKaySeptember 5, 202629 min read

LitigationArbitration

Mass Arbitration Toolkit: Clause Architecture, Batching Protocols, and Response Plans

Working templates for building and running a consumer or worker arbitration program that can absorb mass filings. It includes a complete dispute resolution article with informal resolution, batching, bellwethers, carve-outs and fairness terms; a claimant-matching declaration; a process arbitrator submission outline; a settlement segmentation worksheet; an IDR intake script and log schema; a litigation hold notice; and a tabletop exercise agenda. Each carries drafting notes on what the language does, why courts have enforced it, and where the first generation of countermeasures failed. A closing table sorts the common provisions into those courts have enforced and those they have struck down. Adapt every template to the jurisdiction, the institution's rules, and the specific business.

Casey Scott McKaySeptember 5, 202616 min read

LitigationArbitration

Mass Arbitration Readiness Checklist: A Practical Checklist

A working checklist for preparing for mass arbitration before it happens and for responding when it does. It audits the clause against the provisions courts have enforced and the provisions they have struck down, then covers the four operational capabilities that matter more than drafting: claimant matching, formation evidence, informal dispute resolution at scale, and claims triage. The response sections walk day one through month four, including the process arbitrator submission and settlement segmentation. Separate sections cover the employment variant, governance, and a biennial tabletop exercise.

Casey Scott McKaySeptember 5, 20269 min read

LitigationInternational Litigation

Managing Parallel Litigation in Two Countries: A Practical Guide

Two proceedings in two countries over one dispute is a management problem before it is a legal one, and the failures are failures of coordination. This guide covers the first forty-eight hours after a foreign action appears, the strategic assessment that determines whether to race, enjoin, stay, or settle, and the coordination machinery that keeps two sets of counsel from undermining each other. It works through the evidence conflicts that arise when one forum compels what another prohibits, the judgment recognition analysis that determines whether the race is worth running, and the witness and position discipline that decides credibility in both forums. It closes with the cost modelling that usually produces the settlement.

Casey Scott McKaySeptember 5, 202628 min read

LitigationInternational Arbitration

Investor-State Arbitration: Treaty Protections, Jurisdiction, and the Enforcement of Awards Against States

Investor-state arbitration lets a foreign investor sue a host state directly, under a treaty the investor never signed, before a tribunal the state cannot control. This article explains how that works: the standing offer to arbitrate contained in investment treaties, the jurisdictional requirements that decide most cases before the merits, and the substantive protections — fair and equitable treatment, expropriation, national treatment, and the umbrella clause — that define what a state may not do to an investment. It covers the ICSID system and its self-contained annulment regime, the alternative of ad hoc and institutional arbitration under the New York Convention, and the sovereign immunity rules that make enforcing an award against a state genuinely difficult. Worked examples follow a claim from the first notice of dispute through an attempted execution against state assets.

Casey Scott McKaySeptember 5, 202629 min read

LitigationInternational Arbitration

Investment Treaty Claim Checklist

Investor-state claims fail on jurisdiction far more often than on the merits, and the jurisdictional questions are all checkable before a notice is served. This checklist runs the pre-filing assessment in the order that matters, beginning with whether an award could ever be enforced against this particular state. It then covers the notice of dispute and the cooling-off period, the request for arbitration and arbitrator selection, and the evidentiary case that must be built from the claimant's own files. Separate sections cover the state's defence and bifurcation strategy, quantum from both sides, annulment and enforcement, and the preventive structuring and insurance that should have happened years earlier.

Casey Scott McKaySeptember 5, 20269 min read